Kaur Dehar v. Canada (Citizenship and Immigration), 2007 FC 558

 

Date: 20070528

Docket: IMM-2281-06

Citation: 2007 FC 558

Ottawa, Ontario, May 28, 2007

PRESENT:     The Honourable Mr. Justice de Montigny

 

BETWEEN:

 

RUPINDER KAUR DEHAR, BALKAR SINGH DEHAR, BALJIT KAUR DEHAR, GURINDER DEHAR

Applicants

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

[1]               This is a judicial review of a decision made on February 22, 2006 by H.D. Murphy, an immigration officer, wherein he deleted Rupinder Kaur Dehar from the application for permanent residence of her father, Balkar Singh Dehar. The Officer came to that conclusion because he was of the view Ms. Dehar no longer met the definition of a “dependant child” in section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227.

 

FACTS

[2]               Gurinder Dehar made an application to sponsor his parents for permanent residence in Canada. Gurinder’s sister, Rupinder Kaur Dehar, was included on the sponsorship application, although she was over 22 years old at the time the application was filed. The application for permanent residence was filed on November 29, 2005. Rupinder Kaur Dehar  was considered a dependent child because she was a full-time student financially dependent on her parents. At the time the application was assessed, she was a student at the Institute of Management and Information Technology (ICAI), a program affiliated with Sikkim Manipal University.

 

[3]               On March 27, 2005, Rupinder married Gurjot Singh Randhawa, a permanent resident of Canada. Although the decision does not turn on the history of this marriage, it is of some significance. This marriage came about as a result of a matrimonial advertisement that appeared in a newspaper. The parents considering the match suitable for Rupinder, they responded to the said advertisement. At the time of the settlement of marriage, no demand of dowry was placed, and it was agreed that Mr. Randhawa would sponsor Rupinder so that she could become a Canadian permanent resident.

 

[4]               Unfortunately, things did not work out as expected. Mr. Randhawa came to India for a short period of time to solemnize the marriage. But the day after, the family of the groom began to complain about the size of the dowry provided by Rupinder’s family. These complaints and demands escalated. Mr. Randhawa and his family threatened that if Rupinder’s family did not provide a sizable amount of money, he would not sponsor her to join him in Canada. She was also told her family could no longer sponsor her and that she had no choice but to pay the dowry. The harassment escalated to the point where Rupinder determined that she did not wish to maintain her relationship with her new husband. By May 30, 2005, the relationship irreconcilably ended. Indeed, she filed a complaint with the Indian police on June 8, 2005 and filed a divorce petition on July 9, 2005.

 

[5]               After the marriage broke down, the Dehar family became concerned about whether Rupinder would still be able to be sponsored. Her brother made a number of telephone calls to Citizenship and Immigration Canada to explain Rupinder’s situation, and was apparently reassured that his sister could still be included in the application but that the final decision would be made at the visa office.

 

[6]               On February 21, 2006, a visa officer in New Delhi made a decision to delete Rupinder from the application. This decision was communicated to the applicants by letter dated February 22, 2006 and received by Balkar on February 27, 2006.

 

DECISION UNDER REVIEW

[7]               The decision letter states that Rupinder does not qualify as a dependent for two reasons. The relevant portion of that letter states:

According to the information provided in your application, Rupinder Kaur Dehar turned 22 on July 5, 2001. She does not qualify as a dependent due to the following reasons:

 

a) She got married after she turned 22 years of age. Accordingly, she does not come under any of the sections (a, b or c) discussed earlier in this letter [i.e. subsection b) (i), (ii) or (iii) of the definition of “dependent child” in the Regulations];

 

b) Since the year 2003, she has been enrolled in a distance learning program. This indicates that she is not attending a full time, regular course on a continuous basis;

 

As a result, Rupinder Kaur Dehar was not continuously enrolled since turning the age of 22 in and attending a post-secondary institution that is accredited by the relevant government authority, and actively pursuing a course of academic, professional or vocation training on full time basis.

 

 

[8]               The relevant portions of the Computer Assisted Immigration Processing System (CAIPS) notes read as follows:

RUPINDER KAUR DEHAR (DOB; 05 JUL 79) – AGE OVER 22 AT LOCK IN DATE.

 

…

 

ASSESSMENT OF HER DEPENDENCY:

-           SHE GOT MARRIED ON 27 MAR05 WHICH IS AFTER SHE TURNED 22 YEARS OF AGE

-           RUPINDER KAUR TURNED 22 ON 05 JUL 2001.

2001-2003 MSC DEGREE (MICROBIOLOGY), PUNJAB UNIVERSITY. 2003-2005 ENROLLED IN MSC (INFORMATION TECHNOLOGY) – PROVISIONAL RESULT OF FOURTH SEMESTER STATES THAT IT IS ADMINISTERED BY THE “DISTANCE EDUCATION WING”. SHE DOES NOT APPEAR TO MEET DEPENDENT STATUS.

 

 

[9]               In an affidavit sworn on January 24, 2007 in support of the judicial review, the officer who signed the decision letter sent to the applicants on February 22, 2006 stated that “where the marriage of a child occurs after he/she turned 22 years of age, as in the present case, that fact alone and by itself takes such person out of the definition of ‘dependent child’”.

[10]           With respect to his determination that she did not meet the educational requirements, he stated that there was no evidence that Rupinder was continuously enrolled in and attending on a full time basis post secondary institution that is accredited by the relevant government authority. More particularly, he stated:

7. As indicated in my refusal letter, I found that I did not have evidence that Rupinder Kaur Dehar was continuously enrolled in and attending on a full time basis, since turning the age of 22, a post secondary institution that is accredited by the relevant government authority. The Applicant failed to provide evidence that the ICAI study centre is accredited as required by the legislation. I note that while Sikkim Manipal University is a recognized institution, there is nothing in the letter at tribunal record 53 which indicates that ICAI is recognized by any state government, central government, any Ministry of the central or state government, or the University Grants Commission. The letter does not indicate that it is a college of education affiliated to a recognized University for the purposes of offering academic or professional courses. It is the University that is accredited, not the ICAI. The letter indicates that ICAI is an authorized centre by the University.

 

8. Based on the lack of evidence that ICAI was accredited, combined with the indication on the Applicant’s transcript that she was a student through the distance education wing, there was simply insufficient evidence submitted to conclude that the Applicant met the education requirements as set out in the legislation – those being the requirements of attending on a full time basis a post secondary institution that is accredited by the relevant government authority.

 

 

ISSUES

 

[11]           There are two issues raised by this application for judicial review.

1.      What is the appropriate standard of review?

2.      Did the Officer in determining that Rupinder was not a dependent child within the definition as set out in section 2 of the Regulations. More particularly,

 

                                                               i.      Did the Officer err in interpreting the definition of dependent child as excluding a person who was married after the age of 22?

                                                             ii.      Did the Officer err in finding that Rupinder had not been attending a full time, regular course on a continuous basis?

 

 

PERTINENT LEGISLATION

 

[12]           The relevant provision of the Regulations reads as follows:

ANALYSIS

 

[13]           The Officer’s decision to delete Rupinder’s name from the application was based on two independent determinations. The first determination was that Rupinder did not meet the definition of “dependent child” because she was married after the age of 22. This determination required the Officer to engage in interpreting the definition of “dependent child” within the Regulations. As such, this is squarely a question of law and the parties agreed it should be reviewed on the standard of correctness.

 

[14]           The appropriate standard of review for the issue of whether Rupinder was continuously enrolled in and attending an educational institution must be determined by a pragmatic and functional analysis.

 

[15]           The first factor is whether the legislation contains a privative clause or a right of appeal. As the Immigration and Refugee Protection Act contains neither, this factor is neutral.

 

[16]           The question of whether or not Rupinder was “attending” a post-secondary institution that is accredited by the relevant government authority involves an interpretation of the definition of “dependent child” as well as findings of fact. While the visa officer is definitely in a better position than this Court to determine whether a particular educational institution is indeed an accredited post-secondary institution, how the classes are conducted, what are the courses of study and the diplomas conferred, and whether the applicant is a full-time student, he or she has no more expertise than this Court to interpret the term “attending” with a view to decide whether the physical presence of a professor in a classroom is required or whether a student can be found to be in attendance if the course takes place through teleconference. In short, the issues to be looked at by the visa officer are issues of mixed fact and law. The relative expertise of the visa officer vis-à-vis this Court will therefore depend on the precise nature of his determination. As acknowledged by the Supreme Court in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 33, “the criteria of expertise and the nature of the problem are closely interrelated”. The officer’s decision will therefore attract more deference if it essentially a fact-driven inquiry, whereas it will be given less deference if it is closer to a legal determination.

 

[17]           Finally, the purpose of the provision that sets out the definition of a “dependent child” is to clarify who is a member of the family class and, in particular, under what circumstances children will be considered dependents for the purposes of the Act. The Regulatory Impact Analysis Statement to the Regulations states that the intent of the provisions relating to the family class is to ensure that:

                                                               i.      - the process and criteria by which members of the family class are selected are clear and transparent; this includes the requirements and obligations of sponsors;

 

                                                             ii.      - current social realities are taken into account in the defining of family class membership; and

 

                                                            iii.      - legislation is consistent with other legislation or principles to which Canada is committed

 

 

[18]            This is clearly not a case where the purpose of the statute must be conceived as granting rights as between the parties. As emphasized in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733 and in Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 33, “the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”. Having said this, Parliament has recognized that family reunification is one of the basis upon which permanent residents will be selected (IRPA, s. 12(1)), and Canadian citizens have been given the right to sponsor a foreign national who is a member of the family class. While the decision of an officer called upon to process an application for permanent residency may not be assimilated to a judicial process, premised on the bipolar opposition of two parties, it is not a balancing exercise between different constituencies either. Accordingly, this factor seems to indicate that a moderate amount of deference might be in order.

 

[19]           Taken together, I am of the view that the pragmatic and functional approach indicate the appropriate standard of review is the standard of reasonableness: see also Shah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1131; Mazumder v. Canada (Minister of Citizenship and Immigration), 2005 FC 444. Accordingly, the officer’s decision shall not be disturbed unless it is not supported by any reasons that can stand up to a somewhat probing examination: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, paragraph 56.

 

[20]           Turning now to the issue of the definition of a “dependant child”, the applicants submit that there is no basis in law for excluding someone from that definition because that person married after he or she turned 22. The applicants submit that the definition is silent with respect to what happens when an otherwise dependent child over the age of 22 marries and, accordingly, the only requirements that Rupinder was required to meet are having been enrolled in school and been actively pursuing courses on a full time basis.

 

[21]           Unfortunately for the applicants, I do not think this interpretation is compatible with the wording of the definition. Contrary to the applicants’ submission, I believe becoming a spouse or common law partner after turning 22 is a disqualifying characteristic. The fact that Rupinder separated from her spouse shortly thereafter is not relevant to this determination.

 

[22]           The legislation sets out very specific qualifying characteristics for a dependent child. An applicant must be either under 22 and not a spouse or common law partner, or, if the applicant has depended substantially on the support of the parent since before turning 22, or if the child became a spouse before the age of 22, since becoming a spouse, has been a full time student at an accredited institution, he or she may qualify as a dependent child. There is simply no category of dependency for a student who became a spouse after turning 22. Since great care has been taken in defining a “dependent child” for the purposes of the Regulations (and, by way of consequence, for the purposes of defining “family member” under the Act: see s. 1(3) of the Regulations), silence with respect to an individual who has married after turning 22 must be of consequence.

 

[23]           If, as the applicants would have it, the only requirements for a person marrying after turning 22 were to have been financially dependent on his or her parents since before turning 22 and to have been a full time student at an accredited institution, it would render meaningless the restrictions with respect to marital status; the fact that one was married before the age of 22 would be irrelevant. Yet, the statute specifically sets out that a child who became a spouse or common law partner before turning 22 may qualify under this category if dependency continued. If, as the applicants suggest, the only determining characteristics under s. 2(b)(ii) are financial dependency and pursuit of studies, the Governor in Council would not have made specific reference to the particular category of married persons who may qualify – those who married before age 22.

 

[24]           Indeed, the last part of s. 2(b)(ii) bears out this interpretation. The words “…since before the age of 22 or since becoming a spouse or common-law partner, as the case may be…” clearly refers to the two scenarios previously envisaged in that subsection. Either the child is not married, in which case he or she must have depended substantially on the financial support of the parent since before turning 22 (this is the first scenario), or the child is married, in which case he or she must have married before the age of 22 and have depended substantially on the financial support of the parent since marrying (this is the second scenario, between the two dashes). There is no other option.

 

[25]           This interpretation is consistent with the French version of s. 2(b)(ii). This version is even clearer that a child over 22 will be considered dependent if he or she has continuously depended on the financial support of one of the parents since turning 22, or, if married before turning 22, since becoming married:

…à compter du moment où il a atteint l’âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait …

 

[non-souligné dans l’original]

 

[26]           It is further supported by the definition of “child dependent” when read as a whole. S. 2(b)(i) sets out a category for dependency as being someone who is under 22 years of age and who is not a spouse or common law partner. This provision clearly sets out marital status as a disqualifying characteristic for dependency, except in the narrow circumstance defined in s. 2(b)(ii).

 

[27]           As a result, the Officer correctly determined that Rupinder did not meet the criteria in section (b)(ii) of the definition of “dependent child” because she was married after the age of 22.  This would be sufficient to dismiss the application for judicial review. I shall nevertheless say a few words with respect to the second ground raised by the applicants, if only for the purpose of assessing whether a question should be certified with respect to my finding on the first issue.

 

[28]           As will be recalled, the CAIPS notes state that “provisional result of fourth semester states that it is administered by the ‘distance education wing’”. The applicants submit that the reasons do not adequately explain why attending a distance education wing of a post-secondary institution offends the definition of a “dependent child”.

 

[29]           With respect to the letter, it appears the respondent’s concern is that Rupinder has not been attending a post-secondary institution, in the sense that “attending requires a physical presence on the post-secondary institution’s premises. The applicants’ response to this concern is twofold. First, they contend there is a great deal of evidence that Rupinder has been attending classes at the school campus. Second, they submit the word “attending” should not be interpreted so narrowly as to exclude situations where students attend classes that are taught by videoconference.

 

[30]           The applicants obviously have the burden of proving that Rupinder meets the definition of a “dependent child” and was “attending” a post-secondary program full-time. To this end, they submitted tuition receipts, transcripts and a letter from ICAI as evidence that she was enrolled full-time and was attending a post-secondary program full-time. It is also clear from the record that Rupinder and her parents live in the same municipality as the school she claims to have been attending. There is no evidence of any activity inconsistent with full time studies, such as full time work. Finally, the information taken from the ACAI’s public website shows that the Mohali campus Rupinder says she is attending is on 36,000 square feet of land located in the heart of the city, and is the biggest institute in the region. There are even photographs of students sitting in classroom settings. In short, the evidence prima facie suggests that Rupinder was continuously enrolled and attending a post-secondary institution.

 

[31]           The CAIPS notes and the decision letter make no reference to any of those documents, nor do they provide an explanation for the Officer’s conclusion that attending a distance education program does not amount to “attending a post-secondary institution” within the meaning of the definition of “dependent child”. For these reasons, the Officer’s decision that Rupinder was not attending full-time classes was unreasonable.

 

[32]           The respondent submits that the Officer found that Rupinder did not meet the criteria, in part, because the programs offered by ICAI through the distance education wing of Sikkim Manipal University are not accredited. As evidence they submit the affidavit of the Officer and the affidavit of Officer Garth. To this, the applicants reply that the evidence given by both officers with respect to whether the programs offered by ICAI are accredited is irrelevant because there is no indication in the CAIPS notes or the decision letter that this was a consideration for the Officer who made the decision.

 

[33]           I agree with the applicants. There is absolutely no indication in the decision letter of the CAIPS notes that the Officer had made a determination that ICAI was not an accredited institution. Both documents indicate that the Officer reasoned that attending a distance learning program did not meet the definition of “attending a full time, regular course on a continuous basis”. The explanation in the Officer’s affidavit provides an entirely new line of reasoning which is not reflected in the CAIPS notes and, in such circumstances, the Court should not give any great weight to the Officer’s affidavit. As this Court stated in Yue v. Canada (Minister of Citizenship and Immigration):

…it is inappropriate to file such an affidavit prepared after the event, supplementing the Officer’s reasons given in her letter and the record of the interviews upon which it was based. Such an affidavit as to the nature of the hearing can only be relevant and admissible if it is somehow necessary to describe the procedure or some event in the decisional proceeding which is in dispute, but not to elaborate on the evidence before the Officer or her decision.

 

 

[34]           As a result, I find the Officer erred in finding that Rupinder was excluded from the definition of “dependent child” because she was not attending an accredited post-secondary institution on a full-time basis. Such a finding was unreasonable, on the basis of the evidence that was before him.

 

[35]           However, since Rupinder had to meet all the requirements set out in the definition of a “dependent child”, the application for judicial review must nevertheless be dismissed.

 

[36]           At the end of the hearing, counsel for the applicant submitted the following question for certification:

Does marriage affect the dependency of a student who was over the age of 22 when the application was files and over the age of 22 when the marriage took place?

 

 

[37]           It is trite law that for a question to be certified, it must: 1) transcend the interests of the immediate parties to the litigation; 2) contemplate issues of broad significance or general application; and 3) be determinative of the appeal (M.C.I. v. Lyanagamage, [1994] F.C.J. No. 1637 (F.C.A.); Zazai v. M.C.I., 2004 FCA 89. Considering my finding with respect to the second issue raised by the applicants, there is no doubt the proposed question would be determinative of the appeal.

 

[38]           Counsel for the respondent submitted there is no need for the Court of Appeal to address the proposed question as the circumstances presented by the applicants are particularly unusual, and that it would be a rare occurrence that a child who marries after the age of 22 would remain a student financially dependent on his or her parents. I cannot but disagree with that proposition, since it runs counter to the economic realities of the world we now live in. The fact that such an issue had not been raised before is no indication of its academic character. Quite to the contrary, it is clearly a question that transcends the immediate interests of the parties, and it could be of major significance for prospective permanent resident applicants in the future. For those reasons, I agree to certify the question proposed by the applicants.

ORDER

 

THIS COURT ORDERS that:

1.                  This application for judicial review is dismissed.

2.                  The following question is certified:

Does marriage affect the dependency of a student who was over the age of 22 when the application was filed and over the age of 22 when the marriage took place?

 

 

 

"Yves de Montigny"

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-2281-06

 

 

STYLE OF CAUSE:                          Rupinder Kaur Dehar et al. v. MCI                                                             

 

 

PLACE OF HEARING:                    TORONTO, Ontario

 

 

DATE OF HEARING:                      May 22, 2007

 

 

REASONS FOR ORDER

AND ORDER BY:                            JUSTICE DE MONTIGNY

 

 

DATED:                                             May 28, 2007             

 

 

 

APPEARANCES:

 

Gregory James                                                                                          FOR APPLICANT

 

David Cranton                                                                                      FOR RESPONDENT

                                                                                                           

 

SOLICITORS OF RECORD:

 

Gregory James

Toronto, Ontario                                                                                         FOR APPLICANT

                                                                                                         

 

John H. Sims, Q.C.

Deputy Attorney General of Canada                                                        FOR RESPONDENT